Citation NR: 9628631
Decision Date: 10/15/96 Archive Date: 10/25/96
DOCKET NO. 95-07 768 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased rating for migraine
headaches, currently evaluated as 50 percent disabling.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for a low back
disorder, including L5-S1 right central disc protrusion.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Tresa Schlecht, Associate Counsel
INTRODUCTION
The appellant (the veteran) had active service from January
1979 to November 1988. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida, which denied the veteran’s
request to reopen a claim for service connection for low back
pain, and which initially denied, in June 1994, an increased
evaluation for migraine headaches, and then, in a February
1996 rating decision, granted an increased evaluation for
migraine headaches and assigned a 50 percent evaluation for
that disability, effective October 1994.
The Board notes that the veteran’s representative has
attempted to raise on appeal a claim that the veteran is
individually unemployable as a result of her combined
service-connected disabilities. Issues as to some, but not
all, of the veteran’s service-connected disabilities are
before the Board for appellate review. The veteran has at
least one significant service-connected disability, the
residuals of a cerebrovascular accident (CVA), currently
rated 20 percent disabling, which the veteran’s
representative specifically alleges impairs the veteran’s
employability. Because no issue as to the residuals of a CVA
are before the Board on appeal, the Board has no jurisdiction
over the veteran’s claim for individual unemployability based
on the combination of her service-connected disabilities.
This claim has not been raised before the RO and has not been
developed for appellate review. The veteran should file a
claim for individual unemployability with the RO if she
wishes to pursue that issue.
The Board notes that the representative alleges that the
combined effects of the veteran’s CVA and migraine headaches
have not been evaluated “under extraschedular guidelines.”
The representative further argues that the “overall”
condition of the veteran should be evaluated and considered
“under an extraschedular rating.” The Board interprets these
statements as attempting to raise claims for individual
unemployability under 38 C.F.R. § 4.16(a) or 4.16(b) for the
veteran’s combined disabilities, rather than as a claim for
an extraschedular rating under 38 C.F.R. § 3.321(b) for
migraine headaches. If the veteran wishes to pursue a claim
for an extraschedular rating under 38 C.F.R. § 3.321(b) for
migraine headaches, she should file this claim with the
agency of original jurisdiction.
REMAND
The Board notes that the veteran has not filed any statement
indicating that she wishes to continue her appeal for an
increased rating for migraine headaches since the award of an
increased evaluation to 50 percent, the maximum schedular
evaluation, for migraine headaches. The veteran’s
representative has indicated that she is entitled to an
increased rating for migraine headaches on the basis of the
combination of her disabilities. It is unclear from these
contentions whether the veteran wishes to pursue an appeal
for an increased rating on the basis of a claim for an
extraschedular rating under 38 C.F.R. § 3.321(b). The
veteran should be asked to clarify her wishes with regard to
this appeal. If the veteran wishes to pursue an
extraschedular rating under 38 C.F.R. § 3.321(b), the RO
should appropriately develop the issue.
As to the issue of service connection for the low back
condition, the veteran’s representative contends that VA
examination to obtain a medical opinion as to the
relationship between the veteran’s in-service symptomatology
and service-connected disabilities and her current low back
is required. The representative contends that initial VA
examination in February 1989 was inadequate, and requests
that the veteran be afforded an examination to include review
of his service medical records and all of the other evidence
to determine whether there is any relationship between those
disabilities and the veteran’s current low back condition.
The Board agrees that further factual development is required
prior to determination of whether new and material evidence
has been submitted to reopen the claim of entitlement to
service connection for a low back condition, now diagnosed as
L5-S1 right central disc protrusion.
Accordingly, the case is REMANDED for the following
development:
1. The veteran should be asked whether
she wishes to pursue a claim for an
increased (extraschedular) rating in
excess of 50 percent for migraine
headaches. If the veteran wishes to
withdraw the issue, she should be asked
to do so in writing. If the veteran
wishes to pursue the issue, appropriate
development in conformity with 38 C.F.R.
§ 3.321(b) should be provided.
2. The RO should ask the veteran whether
there is any additional medical evidence
available as to frequency of migraine
headaches, and associate identified
records with the claims file.
3. The RO should ask the veteran to
identify records of any relevant
treatment of a low back condition since
November 1994, and associate such records
with the claims file.
4. The veteran should be afforded a
comprehensive VA orthopedic examination
to determine the cause(s) or
etiology(ies) of a protrusion of a disc
at L5-S1. All of the veteran's
subjective complaints and all objective
findings should be legibly recorded in
detail. All indicated tests and studies
should be conducted. The claims folder
must be made available for review by the
examiner prior to the examination to
facilitate study of the case. After
reviewing the claims file and examining
the veteran, the examiner should rendered
an opinion as to the likelihood that
protrusion of a disc at L5-S1, if found,
was present in service or is related to
any incident or injury inservice or is
related to a service-connected
disability. Detailed reasons and bases
for all diagnoses and opinions reached
should be set forth.
5. The RO should readjudicate the
veteran’s request to reopen a claim for
service connection of an L5-S1 disc
protrusion, after completion of
additional factual development. The RO
should then determine whether new and
material evidence has been submitted to
reopen the claim of entitlement to
service connection for a back disorder,
including review of all additional
evidence submitted since the last final
determination on the merits, reviewing
the evidence under the two-step analysis
specified in Manio v. Derwinski,
1 Vet.App. 140, 145 (1991), evaluating
the claim in light of all the evidence of
record, both old and new, to determine
whether new and material evidence has
been submitted, and, if so, whether that
evidence warrants a revision of the
former decision.
If benefits sought remain denied, the
veteran and her representative should be
provided a supplemental statement of the
case which includes a summary of the
evidence and applicable laws and
regulations, including regulations as to
the evidence required for a well-grounded
claim. The veteran and her
representative should be afforded a
reasonable opportunity to respond.
The Board intimates no opinion as to the ultimate outcome of
this case. The appellant need take no action unless
otherwise notified.
M. W. GREENSTREET
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
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